ALBANY, NY: Save the Pine Bush filed suit
in New York State Supreme Court over the City of Albany Common
approval of the Residence Inn Hotel and an Office Complex
on Washington Avenue Extention in the Pine Bush in March.
Save the Pine Bush sued the City about two development proposals,
a hotel proposed to be built next to the Karner Blue butterfly
hill and an office complex on land designated as a full protection
“The Pine Bush, because it is a globally rare ecosystem,
is an extremely valuable resource to the City. The City should
not allow land speculators to make a fortune by destroying
this beautiful, irreplaceable land,” said Lynne Jackson,
volunteer secretary for Save the Pine Bush.
Stephen F. Downs is representing Save the Pine Bush in these
In the two lawsuits, Save the Pine Bush contends that the
Albany Common Council violated the New York State Environmental
Quality Review Act (SEQRA) when it approved the re-zoning of
land on Washington Avenue Extention from residential to commercial
to allow the construction of a 124-unit Residence Inn Hotel
and an office complex on 6.65 acres of land.
“The Final Environmental Impact Statement adopted by
the Common Council in the hotel project was arbitrary and capricious,
unsubstantiated by the evidence, incomplete, in violation of
SEQRA, illogical and erroneous and completely and totally failed
to adequately consider the effect of the proposed hotel on
the rare and endangered species of plants and animals that
live on or near the site,” said Jackson.
When the Common Council approved the re-zoning of the hotel
site, it improperly determined that no “taking” of
an endangered species (the Karner Blue butterfly) would occur.
Only the US Fish and Wildlife Service (USFWS) can determine
if a taking can occur but the USFWS was not permitted to investigate
the hotel site. In addition, the Common Council did not take
a “hard look” at the project, because they deferred
any review of the findings of the USFWS until after the Final
Environmental Impact Statement was completed, outside of public
In making its decision, the Common Council completely ignored
the neutral scientific experts who presented evidence that
the Karner Blue butterfly currently occupies the site. Instead,
the Common Council relied completely on the developer’s
expert, who has little training or experience with respect
to the Karner blue.
The site for the proposed hotel was illegally cleared prior
to the application to build the hotel. Because the site was
illegally cleared, the Common Council should have considered
the effect the proposed development would have on the site
before it was cleared. The owner of the hotel site did not
obtain a site plan approval before clearing the site, as required
by City law.
The Common Council did not consider the cumulative impacts
of other developments such as the landfill expansion. Indeed,
though the City had applied for a landfill expansion over a
month before the Common Council approved the rezoning for the
hotel, the Common Council stated in its that the landfill expansion
In 1992, the Appellate Division required the City of Albany
to assemble a 2000 fire-manageable preserve in the Pine Bush
before development can proceed on land that might otherwise
be suitable for the preserve. In the hotel case, at the same
time the City of Albany counted the Fox Run land as having
been permanently protected in the Preserve, the City was applying
to use the Fox Run land as an extension of its Rapp Road landfill.
If the City had not adopted the fiction that the City had not
applied for a permit to expand the landfill on to Fox Run,
it would have had to consider whether subtracting the Fox Run
land from the Pine Bush Preserve would leave the Preserve short
of 2000 fire-manageable acres.
According to the lawsuit, in January, 2006, after Save the
Pine Bush again sued the City over the landfill expansion,
the City agreed to withdraw its application to expand the landfill
onto Fox Run, but it claimed that it intended to apply to expand
the landfill onto another parcel of land that had also supposedly
dedicated to the Preserve. And the City claimed the right at
any time to withdraw land supposedly protected for the Preserve
to develop for its own purposes. By taking such a position,
the City’s prior statements in numerous cases on the
amount of land protected for the Karner Blue butterfly Preserve
are essentially false, and amount to a fraud on the court.
If the City of Albany is permitted to withdraw land previously
placed in the Preserve, the City has misrepresented to the
courts in all of the cases listed in the Findings Statement
on the hotel project the amount of land actually preserved,
and the court decisions were based on these misrepresentations.
In the case against the Common Council over the proposed
office complex, the lawsuit states that the Common Council
ignored the fact that a “full-protection” area of the Pine
Bush was located on the proposed site. In addition, the Common
Council decided to put off an environmental review of the project
in violation of the State Environmental Quality Review Act.
This office complex is proposed to be built in front of the
Daughers of Sarah Nursing home and is proposed to cover 6.65
acres of land, a significant size.
To read the legal papers, please go to:
Printed in the May/June 06 newsletter